A Criminalização Da Transfobia No Supremo Tribunal Federal: Uma Análise Da Eficácia Social Da Ado Nº 26 E Do Mi Nº 4.733 Na Garantia Dos Direitos Às Pessoas Trans.

Abstract

This work aims to analyze the social effectiveness of the decision of the Federal Supreme Court in ADO nº26 and MI nº 4.733. The Federal Supreme Court had to position itself on two constitutional actions: the Writ of Injunction nº 4733, of 2012, moved by the Brazilian Association of Lesbians, Gays, Bisexuals, Transvestites, Transgenders and Intersex (ABGLT) and the Direct Action of Unconstitutionality by Omission (ADO) nº 26, filed by the Popular Socialist Party (PPS), in 2013. In June 2019, the Supreme Court decided criminalization of homophobia in Brazil, on a par with the crime of racism. It seeks to understand whether: the countermajoritarian action of the Federal Supreme Court has the capacity to change the legal and factual reality of trans people in guaranteeing fundamental rights? And to what extent does this occur? To solve this problem, the present research has as its general objective to understand how the STF's countermajoritarian action generates social effectiveness. Specifically, it seeks to: (i) study the history of the conquest of rights for trans people in Brazil (ii) analyze the exercise of the STF's countermajoritarian function, focusing on ADO nº26 and MI nº 4733; and (iii) understand the social changes that took place after the judgment of ADO nº 26 and MI nº 4733, mainly through interviews with trans people. In a qualitative approach, guided by the hypothetical-deductive method, the research will be based on a bibliographical and documentary review, in addition to the analysis of primary data, obtained through semi-structured interviews with trans people, selected through the snow ball technique. Thirteen people were contacted and three trans women and two trans men were interviewed. It was possible to identify that the Supreme Court's decision was not able to change people's reality. Through the decision of the STF on the criminalization of transphobia, there was a typification of the crime of transphobia, however there was no significant change in the lives of trans people, who still face discrimination and prejudice. Faced with such inferences, it is emphasized that simple legal innovation does not guarantee access to the rights and dignity of the human person, but that the countermajoritarian function of the STF must be added to other state political actions and promoted by social movements to guarantee the social effectiveness desired.